Dodge v. Hart

• Decision Date: 22 October 1900
• Parties: N. P. DODGE AND S. C. DODGE v. E. E. HART, Appellant
• Court: Iowa Supreme Court

83 N.W. 1063

113 Iowa 685

N. P. DODGE AND S. C. DODGE v. E. E. HART, Appellant

Supreme Court of Iowa, Des Moines

October 22, 1900

Appeal from Pottawattamie District Court.--N. W. MACY, Judge.

ACTION to enjoin excavating in a certain strip of land alleged to be an alley. Decree as prayed, from which defendant appeals.

Affirmed.

Harl & McCabe for appellant.

Caroline L. Dodge and Stone & Tinley for appellees.

LADD J. GRANGER, C. J., not sitting.

OPINION

LADD, J.

Block No. 8, in Bayliss' addition to Council Bluffs lies between Main street on the east and Pearl street on the west 102 feet apart. The lots are 50 feet wide, and abut on both streets. They are numbered from Broadway, on the north, and the block is about 300 feet long. In 1855 the owners of lots 1 and 2 began the construction of what was known as the "Empire Block," completing it the following year. At that time the west 26 feet of lots 1 and 2 belonged to Bayliss; the east 26 feet, to Toole & Jackson; the 25 feet adjoining the latter, to Toole & Doughty; and the remaining 25 feet, to R. P. Snow; and the building was divided accordingly. It fronted on Broadway, and extended back 80 feet, leaving a strip of 20 feet between it and lot 3, of which cellar entrances occupied from 5 to 8 feet. The principal business of the proprietors of these stores was outfitting emigrants and others for the plains beyond the Missouri river, and is thus described by one of the witnesses: "Got their goods in by boats. Nearly all the merchants in Empire Block had their goods delivered at the back door in wagons, and a considerable share of the loading for the plains was done from the back doors and cellars in this alley. Very large share of the use of that space was by these merchants. When they were doing a heavy business, it would be obstructed,--pretty nearly impossible to drive through. Their business required that it be conducted in this way. That continued down till the Empire Block was burned." There was a small dwelling on the west half of the north 40 feet of lot 3, which was replaced by a large warehouse in 1861. On the east half was a one-story warehouse used in connection with the east store. It should be added that these warehouses had side doors opening in this vacant space. All the buildings were destroyed by the fire of 1867, and, as the Union Pacific Railroad was completed in 1868, the old way of doing business was never resumed. Shortly after the fire, Pusey, who had acquired the west 26 feet, began excavating for a building to extend back to lot 3, when he was temporarily enjoined at the suit of Amy and the Brewsters, who owned the next 50 feet, on the ground that a driveway had been dedicated along the south side of lot 2 as a public alley. This was disposed of by written agreement of the parties, under the terms of which a strip 12 feet wide, immediately north of lot 3, and extending 76 feet from Pearl street, was "set apart as a private way, to remain forever free and unobstructed as an entrance and passage to the rear of the buildings on the portions of said lots owned by the parties to this agreement, for the use and benefit of said owners." Thereupon brick buildings were constructed on the three lots, extending back 88 feet from Broadway. Tootle, the owner of the east 26 feet, was not a party to this arrangement; but his grantees, Officer & Pusey, in 1868, erected thereon a three-story brick building, corresponding in length with the others, though with areaways about the cellar windows extending in the 12-foot strip. The year following N. P. Dodge put a brick building on the east half of the north 40 feet of lot 3, acquired by him in 1867; and a year later another on the west half thereof, which had been owned by his wife, S. C. Dodge, since 1864. Doors and windows open from each of these into this vacant way. Since 1856 there has been a well-defined beaten driveway over this strip of land extending from Pearl to Main street, used largely by the owners of lots abutting thereon and their tenants, but also continuously traveled by the public without objection, save as mentioned, and the attempt of defendant, who acquired the east 26 feet of Officer & Pusey in 1898, to excavate back to lot 3, to enjoin which this action was begun. The plaintiffs had made use of this vacant strip as an alley in connection with their buildings on lot 3 for 30 years, during which time they had frequently cleaned it of rubbish on notice from the city, and they insist that it has become, by dedication, a public alley. On the other hand, the defendant asserts that it was left for private use and convenience, and the travel of the public and use by neighbors has been merely incidental thereto,--permissive only,--and subservient to the owner's title. Did the facts bear out the defendant's contention unquestionably dedication could not be inferred. See State v. Tucker, 36 Iowa 485; Irwin v. Dixion, 50 U.S. 10 (13 L.Ed. 25); Griffin's Appeal, 109 Pa. 150; Hall v. McLeod, 2 Metc. (Ky.) 98 (74 Am. Dec. 400); Durgin v. City of Lowell, 85 Mass. 398; Dexter v. Tree, 117 Ill. 532 (6 N.E. 506).

But the evidence fails to establish a state of facts upon which the appellant rests his argument. The real design in leaving the space back of the Empire Block is not disclosed by the record. It may have been because of the convenience of an alley at the rear of the building, or for the reason that storerooms 80 feet long were large enough for business purposes, or owing to necessity of such space for the transaction of the peculiar kind of trade then carried on. That it was deemed essential in the early days of the city's life is not questioned. While this might furnish a strong reason for its dedication as an alley, it also quite as satisfactorily explains why it was not otherwise occupied. Up to the time of the fire, in 1867, it was mainly used by the occupants of the Empire Block, though also by any one who wished to drive or walk through. But it must be remembered that the principal purpose of a public alley is to furnish the owners of the abutting lots and those dealing...